The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014, and what a story it was.

First, we noticed media reports about the military judge’s ruling, in a post titled: Rape Charges Dismissed for Prosecutorial . . . Incompetence(?)

Then we noted the scheduled oral argument at the Air Force CCA.

The Air Force CCA’s decision provided plenty of details, as the court denied the Government appeal of the dismissal of rape charges that was ordered after the Government refused to produce witness notes. The CCA’s opinion revealed that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.

That got the case onto our Top Ten list, but it wasn’t over as the the Air Force JAG certified the case to CAAF.

And then CAAF ordered the Government to re-brief the case, to address “possible controlling or adverse authority.”

Now, in an summary decision issued yesterday, CAAF affirms the military judge and the Air Force court:

No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08.  On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Jan. 5, 2015)), and the briefs of the parties and amicus curiae, we conclude that the military judge did not abuse his discretion in dismissing all charges and specifications with prejudice following the Government’s refusal to comply with the military judge’s order to produce trial counsel’s witness interview notes for an in camera inspection. “[A] judge is ultimately responsible for the control of his or her court and the trial proceedings,” and “[p]roper case management during a trial, necessary for the protection of an accused’s due process rights and the effective administration of justice, is encompassed within that responsibility.” United States v. Vargas, 74 M.J. 1, 8 (C.A.A.F. 2014). Because a judge has broad discretion and a range of choices in crafting a remedy to cure discovery violations and ensure a fair trial, this Court will not reverse so long as his or her decision remains within that range. See United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). In this case, the military judge’s decision, as affirmed by the Court of Criminal Appeals, was within that range. Accordingly, it is ordered that the certified questions are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

11 Responses to “CAAF affirms dismissal with prejudice in Bowser”

  1. Jack Burton says:

    “Sometimes you win, sometimes you lose, sometimes it rains.” Think about that for a while.– Nuke Laloosh (Bull Durham)

  2. DCGoneGalt says:

    I sense an evolution of the POD-People mantra of “this is why we need to remove commanders from the military justice system” to one of “this is why reform is needed to remove military judges from the military justice system”.

  3. Zachary D Spilman says:

    You think they’ll start blaming all the lawyers, DCGoneGalt?

  4. Burt Macklin says:

    “And then they came for the JAGs—and there was no one left to speak for me.”

  5. DCGoneGalt says:

    Mr. Spilman:  Good analysis in the article.  If the POD-people did come with torches and pitchforks for JAG leadership I would experience schadenfreude.  Then again, it can be hard to tell the difference between the two groups most of the time.

  6. Tami (a/k/a Princess Leia) says:

    Good.  This was ridiculous.

  7. Tami (a/k/a Princess Leia) says:

    And undoubtedly, government counsel in this case, at all levels, will get promoted and plum assignments at some point in time, because at least they “tried to do the right thing” by never giving up on litigating this case.

  8. Paco says:

    Of course a promotion/plum assignment is coming; he will be able to say to that “fire on the hill” that he did everything he could to stop Sexual Assault to include not following a judge’s order.

  9. Tami a//k/a Princess Leia says:

    Maybe the now-former accused should prefer charges against the TCs for violating Articles 92 and 134 UCMJ–disobeying a lawful order and obstruction of justice.  And throw in an Article 133 too–conduct unbecoming.  That would be interesting.

  10. Fired AFJAG says:

    Good to see this Accused get justice.  Hopefully not so subtle message from AFCCA and CAAF to the AFJAGC that their constant shenanigans are violating the Constitutional rights of the Accused gets through…but I doubt it.  I’m sure the discussions in the high levels of the AFJAGC today are about figuring out new ways to violate an Accused’s Constitutional rights without being caught.

  11. AnonymousSrA says:

    At my trial a similar tactic was used against one of the CMSgts right before he took the stand for me as a character witness. Before taking the stand on one of our breaks TC pulled this CMSgt aside in a room and asked him if he knew that I already admitted to rape. It escalated to a heated discussion and the Chief came and told me what happened. I relayed it to my lawyers and they asked me if there was any witnesses. I told them no, that TC just pulled him aside in one of the rooms. They told me there was nothing we could really do. I guess TC is allowed to pull out all strings just to get a “W”.